HAROLD LOPEZ, plf-ap, v. THE ACTOR'S STUDIO, INC. defres

10539. HAROLD LOPEZ, plf-ap, v. THE ACTOR'S STUDIO, INC. defres — [AND A THIRD-PARTY ACTION] Alexander J. Wulwick, New York, for ap — DeCicco, Gibbons & McNamara, P.C., New York (Daniel J. McNamara of counsel), for The Actor's Studio, Inc., res — Ginsburg & Misk, Queens Village (Gerard N. Misk of counsel), for West Wind Enterprises, INC., res — Order, Supreme Court, Bronx County (John A. Barone, J.), entered September 18, 2012, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for summary judgment on the issue of liability under Labor Law §240(1), unanimously affirmed, without costs.

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10539. HAROLD LOPEZ, plf-ap, v. THE ACTOR’S STUDIO, INC. defres — [AND A THIRD-PARTY ACTION] Alexander J. Wulwick, New York, for ap — DeCicco, Gibbons & McNamara, P.C., New York (Daniel J. McNamara of counsel), for The Actor’s Studio, Inc., res — Ginsburg & Misk, Queens Village (Gerard N. Misk of counsel), for West Wind Enterprises, INC., res — Order, Supreme Court, Bronx County (John A. Barone, J.), entered September 18, 2012, which, insofar as appealed from as limited by the briefs, denied plaintiff’s motion for summary judgment on the issue of liability under Labor Law §240(1), unanimously affirmed, without costs.

Plaintiff testified that he was standing on two wooden beams four or five feet above the dirt floor of the basement of a building undergoing renovation, threading electrical cable through metal studs on the wall four or five feet above the beams, when he fell between the beams, striking his shoulder on one of them. He said that no one had directed him to stand on the beams but that it was necessary for him to do so to reach the studs. The president of the general contractor, defendant West Wind Enterprises, who was at the site almost daily, testified that the dirt floor was, at most, 30 inches below the beams and that a person of average height could have threaded cable through the studs on the wall from a standing position on the floor.

HAROLD LOPEZ, plf-ap, v. THE ACTOR'S STUDIO, INC. defres

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